Negligence and Indemnity

A claim in clinical negligence must establish four things, and all four are needed for a claim to succeed. There must be a duty of care owed to the patient, a breach of that duty, harm to the patient, and a causal link between the breach and the harm.

A duty of care arises whenever a doctor takes on a patient's care. In sport it can arise in less obvious situations, such as treating a collapsed spectator, and agreeing to cover an event creates duties within the agreed medical role and towards those whose care the doctor takes on, rather than an unlimited duty to everyone present. A breach means the care fell below the standard reasonably expected. Harm means the patient suffered a recognised injury or loss. Causation, often the hardest element to prove, means showing that the breach, rather than the underlying condition or something else, actually caused the harm. If any element is missing, for example if there was a breach but no resulting harm, a claim in negligence will not succeed. The burden is on the person bringing the claim to show, on the balance of probabilities, that each element is met. In practice, most concerns raised against doctors do not become negligence claims, and many claims fail on causation even where the care could have been better.

The standard expected is not perfection but the standard of a reasonably competent practitioner in the relevant role. A doctor is generally not negligent if they acted in a way that a responsible body of similar practitioners would support, an approach that comes from the case of Bolam. That body's view must itself stand up to logical scrutiny, a refinement from the case of Bolitho, so a practice cannot be defended simply because some doctors follow it if it cannot be logically justified. Consent has its own standard, set by the case of Montgomery: the patient must be told about the material risks a reasonable person in their position would want to know, and about any risk this particular patient would attach significance to. In sport, this means the standard is that of a competent practitioner doing that sporting role, and a doctor should work within their competence and seek help when a situation goes beyond it. The standard is judged by reference to the time of the events and the information reasonably available then, not with the benefit of hindsight. Following recognised guidelines and keeping clear records both help demonstrate that the standard was met, though guidelines inform rather than replace clinical judgement for the individual patient.

Every doctor must have adequate and appropriate insurance or indemnity covering the full scope of their practice in the UK, so that a patient is not left without redress if something goes wrong. This is a professional requirement, not an optional extra. NHS clinical work is generally covered by an NHS indemnity scheme, and whether a particular piece of club or event work is covered depends on who commissioned it, the employment arrangement and the relevant scheme, so a doctor must confirm the position before starting and arrange additional cover if it is needed. Private practice is not covered by NHS indemnity, and much SEM work sits outside the NHS, so separate cover, usually through a medical defence organisation, is commonly required. An unplanned Good Samaritan act is different again: the statutory requirement to hold indemnity does not apply to giving emergency help by chance, though a doctor should still check whether their insurer or defence organisation would cover it, and planned voluntary work at a club or event is not a Good Samaritan act and does need appropriate cover. Consider a doctor who covers a weekend event for a local club: they should confirm in advance that they are covered, whether through the organisation or their own arrangements, rather than assume their NHS indemnity applies. A medical defence organisation can also provide advice and representation for complaints, inquests and regulatory matters, not only negligence claims. Indemnity arrangements differ, including claims-made cover and occurrence-based cover, so a doctor should confirm how a claim made after the work has ended would be handled, which matters for injuries that surface years later. Cover should reflect the actual work being done and be in place before the work starts. A doctor whose practice changes, for example by taking on new sporting commitments, should review whether their cover still fits, and should be able to confirm they hold adequate cover when asked.

A common misunderstanding is to assume that a poor outcome means negligence, when a claim also requires a breach of the standard and a causal link to harm. Another is to forget that a duty of care can arise in informal sporting situations, such as agreeing to help at an event. On indemnity, the frequent error is to assume NHS cover extends to all work, leaving private, club or event work uncovered, or to overlook the need for cover for claims that surface years later. Practising beyond one's competence, and failing to seek help or refer, is both a clinical and a medico-legal risk. Finally, doctors sometimes do not check their cover when their scope of work changes, which can leave a gap.

• •Clinical negligence requires duty of care, breach, harm and causation, all four together.
• •The standard of care is that of a reasonably competent practitioner in the role.
• •A responsible body of practitioners must still be able to justify its practice logically.
• •Consent requires disclosure of material risks relevant to the particular patient.
• •Every doctor must hold adequate and appropriate indemnity for their whole practice.
• •NHS indemnity does not cover private practice; confirm the position for club or event work; the indemnity duty does not apply to an unplanned Good Samaritan act.